Roudnahal v. Ridge, No. 1:02 CV 02459.

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: Matia
• Citation: 310 F.Supp.2d 884
• Parties: Saleh Jafar ROUDNAHAL, et al., Plaintiffs, v. Tom RIDGE, et al., Defendants.
• Decision Date: 03 December 2003
• Docket Number: No. 1:02 CV 02459.

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310 F.Supp.2d 884 Saleh Jafar ROUDNAHAL, et al., Plaintiffs,
v.
Tom RIDGE, et al., Defendants. No. 1:02 CV 02459. United States District Court, N.D. Ohio, Eastern Division. December 3, 2003.

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Barbara A. Firstenberg, Shaker Heights, OH, Cathy M. Shibley, Law Office of Barbara A. Firstenberg, Ohio Savings Bank, Shaker Heights, OH, Karen K. Meade, Law Office of Karen K. Meade, Cleveland, OH, for Saleh Jafar Roudnahal, Abdul Razzaq Ismaelzadeh, Intanious Obeid, Fawaz Yazji, Yaseen Bashir Adam,

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A.H.A. A., a minor, by and through his parent and next friend, Mohammad Bagher Haji Amou Assar, Nayer Bagheri, Mohammad Bagher Haji Amou Assar, Plaintiffs.

Earle Wilson, Office of Immigration Litigation, Kathleen Lucille Midian, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for John Ashcroft, Mark Hansen, Tom Ridge, Secretary of the Department of Homeland Security, Linda Rabbett, Interim District Director for Interior Enforcement, Department of Homeland Security, Defendants.

MEMORANDUM OF OPINION AND ORDER

MATIA, Chief Judge.

This case is before the Court upon the defendants' motion to dismiss (Doc. 48). The defendants move to dismiss the claims against them for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the defendants' motion will be GRANTED in part and DENIED in part.

I. Background

The plaintiffs are all non-citizens of Arab descent present in the United States. Because of their nationalities and non-citizen status, most of the plaintiffs were required to register with a local INS¹ office in order to comply with the Special Registration Procedure² established by the Attorney General in 2002. See Registration and Monitoring of Certain Nonimmigrants, 67 Fed.Reg. 52,584 (Aug. 12, 2002). Major provisions of Special Registration required that all male nonimmigrants from Iraq, Iran, Sudan, Libya, and Syria, who were admitted to the United States before September 10, 2002, and remaining until at least December 16, 2002, were to report to designated INS offices between November 15, 2002 and December 16, 2002 to be registered and fingerprinted. See Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed.Reg. 67,766 (Nov. 6, 2002).

The plaintiffs in this matter, each born in a Special Registration-designated country, voluntarily appeared for registration at various times in December 2002. When the plaintiffs appeared for Special Registration, however, the INS initiated removal proceedings against them when it was determined

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that the plaintiffs' lawful immigration status had ended. Currently, of the eight plaintiffs in this matter, two individuals have been issued final deportation orders (one of which is now on appeal with the Board of Immigration Appeals ("BIA")), three remain in removal proceedings, and three plaintiffs have had their removal proceedings terminated.

Essentially, the plaintiffs allege in their second amended complaint (Doc. 36) that they were improperly detained when they appeared for Special Registration and that the defendants' attempt to remove them from the United States violates constitutional, statutory, and regulatory law. In their complaint, the plaintiffs have requested injunctive relief (Count I) to enjoin defendants' removal actions and cease implementation of a "flawed" registration procedure; declaratory relief (Count II) on the basis that Special Registration and defendants' subsequent removal actions are discriminatory; habeas corpus relief (Count III) for unlawful detention; and damages (Counts IV and V) pursuant to the Little Tucker Act ("Tucker Act"), 28 U.S.C. § 1346, and the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

The defendants move to dismiss the claims for injunctive and declaratory relief under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6); dismissal of the habeas claim pursuant to Fed.R.Civ.P. 12(b)(6); and dismissal of the Tucker Act and EAJA damage claims under Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6).

II. Statement of Facts

A. Plaintiff Roudnahal

Plaintiff Saleh Jafar Roudnahal is a citizen of Iran who entered the United States as a nonimmigrant visitor on October 12, 1992, with authorization to remain until January 11, 1993. Roudnahal remained in the country beyond this date and, on May 26, 1999, the INS commenced removal proceedings against him by serving a Notice to Appear ("NTA") on Roudnahal when he was in Florida. Roudnahal was released on his own recognizance and directed to appear for a removal hearing in Immigration Court on July 27, 1999. Roudnahal failed to attend his removal hearing and was subsequently ordered deported in absentia on July 27, 1999.

Roudnahal married an American citizen on October 7, 2002. Roudnahal's spouse, Izies Abu-Mathkour, filed an I-130 Petition for Alien Relative on his behalf on December 13, 2002. Roudnahal contends that, as the spouse of a United States citizen, he is entitled to adjust his status to that of permanent resident.

On December 12, 2002, Roudnahal moved through counsel to reopen his removal hearing of July 27, 1999, arguing that he did not understand the consequences of failing to appear at the proceedings. The motion was denied on January 6, 2003.

On December 16, 2002, Roudnahal went to the Cleveland INS office to register pursuant to the Special Registration Procedure. He was subsequently taken into custody due to the standing removal order of July 27, 1999. A Warrant of Deportation/Removal of Roudnahal was issued by the INS on January 4, 2003. On April 15, 2003, Roudnahal was released from custody. Roudnahal currently remains subject to the deportation order of July 27, 1999.

B. Plaintiffs Bagheri, Assar, and A.H.A.A. (a Minor)

Plaintiff Nayer Bagheri is an Iranian citizen who entered the United States as a nonimmigrant exchange visitor on September 29, 1993, with authorization to remain until August 31, 1999. Plaintiff Mohammad Assar entered the United States on

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August 13, 1991 as a nonimmigrant exchange visitor with authorization to remain until December 15, 2001. Bagheri and Assar are married and have one child, A.H.A.A., who entered the country as a nonimmigrant exchange visitor on September 29, 1993, with authorization to remain until August 31, 1999.

On June 5, 1998, Bagheri filed an I-485 Application to Adjust to Permanent Resident Status. On that date, Assar and A.H.A.A. also filed petitions for adjustment of status as dependents of a principal beneficiary (Bagheri) of an approved employment visa petition. The INS denied those applications on December 27, 2002, based on Bagheri's failure to satisfy the two-year foreign residence requirement.³

On December 12, 2002, Bagheri, Assar, and A.H.A.A. appeared at the Cleveland INS office to fulfill the Special Registration requirement. At that time, all three plaintiffs were arrested, issued NTAs, and placed in removal proceedings for overstaying their visas. All three individuals were released that same day. On August 25, 2003, the Immigration Court terminated the removal proceeding of Assar and A.H.A.A., thus allowing them to continue pursuit of their I-485 petitions without threat of imminent deportation (Doc. 53, Exhibit Q). The pleadings currently indicate Bagheri still remains in removal proceedings.

C. Plaintiff Ismaelzadeh

Plaintiff Abdul Razzaq Ismaelzadeh is an Iranian citizen who entered the United States as a nonimmigrant student on January 11, 1986, with authorization to remain for the duration of his status as a student. Ismaelzadeh filed an I-140 Petition for Alien Worker on September 24, 2002 and an I-485 Application to Adjust to Permanent Resident Status on December 3, 2002. These two applications are still pending.

Ismaelzadeh appeared for Special Registration at the Cleveland INS office on December 16, 2002. At that time, Ismaelzadeh was arrested, issued an NTA, and placed in removal proceedings for overstaying his visa. He was released that same day. The pleadings currently indicate Ismaelzadeh remains in removal proceedings.

D. Plaintiff Obeid

Plaintiff Intanious Obeid is a Syrian citizen who entered the United States as a nonimmigrant visitor on December 21, 1999, with authorization to remain until June 21, 2000. On October 31, 2002, Obeid filed an I-140 Petition for Alien Worker and an I-485 Application to Adjust to Permanent Resident Status; approval for both applications is pending.

Obeid appeared for Special Registration at the Cleveland INS office on December 16, 2002. At that time, Obeid was arrested, served with an NTA, and placed in removal proceedings for overstaying his visa; he was released that same day. On October 2, 2003, the Immigration Court terminated Obeid's removal proceeding, thus allowing him to continue pursuit of his I-485 petition without threat of imminent deportation (Doc. 53, Exhibit Q).

E. Plaintiff Yazji

Plaintiff Fawaz Yazji is a Syrian citizen who entered the United States as a nonimmigrant visitor on May 17, 1997, with authorization to remain until November 16, 1997. He filed an I-485 Application to Adjust to Permanent Resident Status on

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September 16, 2002; the application is pending.

Yazji appeared before the INS in Cleveland on December 13, 2002 pursuant to the Special Registration requirements. He was subsequently issued an NTA and placed in removal proceedings for overstaying his visa, but was not arrested or detained.

On February 20, 2003, Yazji was ordered removed in absentia when he failed to appear for his removal hearing. Yazji filed a motion to reopen, arguing that he had not received notice of the hearing; the motion was denied on March 27, 2003. Yazji's deportation order is currently under review by the Board of Immigration Appeals.

F. Plaintiff Adam

Plaintiff Yaseen Bashir Adam is a Syrian citizen who entered the United States as a...